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2018 DIGILAW 281 (JK)

J&K State Legal Services v. State of J&K

2018-05-09

M.K.HANJURA, TASHI RABSTAN

body2018
JUDGMENT : 1. This application, bearing MP No.01/2017, has been filed by the appellant (J&K Legal Service Authority through its Member Secretary), seeking grant of leave to allow it to urge another ground in the memo of appeal regarding the legality and validity of the notification in view of the provisions of Section 27 read with Section 3 of the J&K Legal Services Authority Act, 1997 as the notification being issued by incompetent authority without proper approval and decision and does not create any right in favour of the respondents for undertaking any exercise for selection to the posts of Junior Legal Assistants in question. 2. The appellant/applicant in the applicant on hand states that he has filed Letters Patent Appeal (LPA no.182/2016 titled J&K Legal Service Authority v. Gulafroz Khan and others) against the order dated 14th October 2016, passed by the learned Single Bench in SWP no.832/2016 titled State Legal Authority v. Gulafroz Khan and others. The applicants also states that after presentation of the appeal, the J&K State Legal Service Authority engaged a Senior Counsel who called the relevant record and after perusal of the same, he took up the plea about the validity of the Notification no.1-SLSA/2012 dated 27th April 2012, which was issued in terms of Section 27 of the J&K Legal Service authority Act, 1997, wherein after to be called “Act” which says that “the State Legal Authority made by notification made regulations not in consistent with the provisions of this Act and the rules made thereunder, to provide for all matters for which provision is necessary or expedient for the purposes of giving effect to the provisions of this Act and Rule 28 provides for drafting Rules and regulations before State Legislature”. Accordingly, the J&K Legal Service Authority made regulations called J&K State Legal Services Authority Regulations of 1998, adopted on 16th April 1998, which provided constitution of the recruitment board in terms of Regulation 29. It is averred that a Notification was issued by the Authority on 27th April 2012, adding clause (6) that provides that notwithstanding anything contained in Clause (1) to (5), the posts in the service, which to be filled up by direct recruitment, shall be referred to the J&K Services Selection Board for selection. It is averred that a Notification was issued by the Authority on 27th April 2012, adding clause (6) that provides that notwithstanding anything contained in Clause (1) to (5), the posts in the service, which to be filled up by direct recruitment, shall be referred to the J&K Services Selection Board for selection. As the regulations have been passed and issued by the State Legal Service authority in terms of Section 27, therefore, any amendment, change, alteration, addition, is available in terms of Section 21 of the General Clauses Act. While the plea was raised during arguments at the time of admission regarding validity of the notification no.01-SLSA of 2012 dated 27th April 2012, by the counsel for the appellant, but objection was raised that the same has not been pleaded in the Memo of Appeal. The appellant through his counsel has raised the objection by way of submitting original record regarding the notification to the extent that the same was not made by the State Legal Authority as the said Authority has been constituted in terms of Section 3 of the Act. The appellant through his counsel has raised the objection by way of submitting original record regarding the notification to the extent that the same was not made by the State Legal Authority as the said Authority has been constituted in terms of Section 3 of the Act. According to the appellant/applicant, perusal of the official record presented before this Court as projected by the counsel for the appellant it transpires that the proposal for addition of Clause (6) has been mooted as desired and accordingly proposal for the same has been mooted in official file at paragraph 11, then 12,13, and 14, by the then Member Secretary (Law Secretary) on 15th June 2011 and submitted the same before the Hon’ble Executive Chairman, whose Lordships on 19th July 2011 returned file for discussion to the Member Secretary and in terms of paragraphs 16 and 17, the proposal has been submitted again by the then Member Secretary on 26th April 2012 for approval vide paragraph 17 to the Hon’ble Executive Chairman and Hon’ble Patron in Chief and at paragraph 18, it is shown that the same has been approved by the Executive Chairman on 26th April 2012, but when it was brought to the notice of the authority vide paragraph 22 and 23, it transpired that the proposal of amendment to incorporate clause (6) was not submitted to the Patron in Chief, for approval and it was mentioned in paragraph 23 itself but in fact the proposal has never been submitted to Patron in Chief and the amendment has been made without seeking the approval of the Patron in Chief, accordingly the new Member Secretary on 13th November 2014 submitted proposal for rescinding and delineation of clause (6) which was submitted to the Patron in Chief for his approval. Prior to it, the Member Secretary submitted a proposal to Executive Chairman, who recommended the proposal may be approved as proposed on 14th November 2014, at paragraph 6 of the concerned file and was thereafter submitted to Patron in Chief on 17th November 2014, whose Lordship approved the proposal vide paragraph 27. Consequently on 18th November 2014, notification dated 18th November 2014 was issued. Consequently on 18th November 2014, notification dated 18th November 2014 was issued. It is maintained that as the appellant had no legal knowledge/experience of drafting of LPAs or filing of the same nor has at that time legal advice available for the purpose, therefore, could not envisage all legal and factual grounds to be urged but reserve his right for the purpose in terms of clause (g) of the grounds of the challenge at page 11 of memo of appeal. Since the notification has not been passed by the competent authority, it is next averred by the appellant/applicant, the notification is legally void and unenforceable and does not create any right as the decision to issue the notification in question has not been taken by the competent authority as provided under Section 27 read with Section 3 of the Act, therefore, the same being unenforceable could not be relied for any purpose as the same is without jurisdiction. It is claimed that as the LPA against the learned Single Bench judgement is inter court appeal and is in continuation of writ proceedings, the appellant is within its rights to submit the grounds in its memorandum of its appeal, regarding the legal validity of the notification on the basis of official record. 3. Objections have been filed by the respondents in opposition to the instant application. They insist that the grounds sought to be urged in the application for raising additional pleas in the memo of Appeal are otherwise liable to be rejected because the amendment made in the Regulation 29 has been approved by the then Acting Chief Justice of J&K High Court, who was functioning as such from 2nd April 2012 to 8th June 2014. The official respondents, it is maintained, have already issued the orders of the appointment in favour of the candidates, who had applied for the post of Junior Assistant, after the amendment of Regulation 29. Once the appellant has acted on the selection list, which was issued by the Recruitment Board with regard to the Junior Assistant after the amendment made in the Regulation 29, it is not open to them to question the referring of the post of the Junior Legal Assistant to the Recruitment Board for issuing of the orders of the appointment in their favour. 4. We have heard the learned counsel for the parties and considered the matter. 5. 4. We have heard the learned counsel for the parties and considered the matter. 5. The subject matter of main appeal (LPA no.182/2016) relates to the challenge to the judgement and order dated 14th October 2016, passed by the learned Single Judge in SWP no.832/2016 titled Gulafroz Khan and Ors. v. State of J&K and Ors., quashing communication no.SLSA / Estt / R.B / 08 / 2015 / 1476-79 dated 21st April 2016, addressed by the appellant to the J&K Services Selection Board and the appellant directed to issue the orders of the appointment in favour of the respondents/writ petitioners in terms of the select list formulated by the SSB. 6. The averments in the instant application, more particularly in the paragraphs 02 and 11 are pusillanimous in nature and character, besides being fantastic as well. Whatever averred in the application on hand could have very well been asserted before the learned Writ Court as also the moment the Letters Patent Appeal was filed. It is true that the appellant/applicant has not raised the plea, beseeched to be projected in the present application, either in the Reply before the learned Writ Court or in the memo of the appeal filed by the appellant / applicant. Such a plea cannot be, thus, permitted to be urged at this belated stage. Reference in this regard is made to Sahadevan Alias Sagadevan v. State (2003) 1 SCC 534 ; P.D. Dinakaran v. Judges Inquiry Committee (2011) 8 SCC 380 ; Vinita S. Rao v. Essen Corporate Services (P) Ltd (2015) 1 SCC 527 ; and Mst Jana Begum v. Prithvi Nath Razdan, 2005 (Supp) JKJ 144 (J&K). 7. In the result, the instant application is dismissed as being devoid any merit.